STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JUSTIN B HENKEL, Employee

YOUNG MENS CHRISTIAN ASSN
OF DANE COUNTY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401804AP


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits paid to the employee in error for weeks 19 through 40 of 2003 as a result of the employer's failure, including those benefits paid from the account of another employing unit, will be charged to the employer's account.

Dated and mailed February 23, 2005
henkeju . usd : 105 : 1   BR 319.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer asks, in the petition for review, that the penalty given it by the Department of Workforce Development be reduced proportionally (as the employer was not the only entity at fault with regard to the payment of benefits in question). The commission is unaware of any provision allowing for such a proportionate reduction, and so has affirmed the appeal tribunal decision in this case. The law requires assessing the penalty imposed upon the employer, when an employer fails to provide correct and complete information on a required report. See Wis. Stat. § 108.04(13)(f). There is no question, however, but that the employer's information to the department regarding the employee's not working for the employer was incomplete. The commission certainly implies no intentional wrongdoing on the employer's part. It remains the case that the information given by the employee's supervisor to the employer's administrator was incomplete, thus leading to the administrator's giving of incomplete information to the department itself. The department's representative at hearing correctly noted that there could be several reasons for the notations the employer originally listed on the wage verification reports returned to the department. Those notations thus cannot be held to have constituted complete information within the meaning of Wis. Stat. § 108.04(13)(f).

For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.

cc: YMCA of Dane County, Inc.



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